THE WORK OF THE SECOND HAGUE PEACE

CONFERENCE

The Second International Peace Conference, like its predecessor of 1899, endeavored to humanize the hardships necessarily incident to war and to substitute for a resort to arms a pacific settlement of international grievances, which, if unsettled, might lead to war or make the maintenance of pacific relations difficult and problematical. The conference of 1907, no more than its immediate predecessor, satisfied the leaders of humanitarian thought. War was not abolished, nor was peace legislated into existence. Universal disarmament was as unacceptable in 1907 as in 1899, and some few nations. were still unwilling to bind themselves to refer all international disputes not involving independence, vital interests, or national honor to a court of arbitration.

Deeply interested in the success of these projects, the great public felt that their failure necessarily involved the failure of the conference, notwithstanding that many wise and humanitarian measures falling short of the goal were incorporated into the law of nations. But we should not in our disappointment, and perhaps bitterness of soul, overlook positive and beneficent progress, and if we could not take the advanced position outlined by the friends of peace, we should nevertheless rejoice that many a mile-stone has been passed. We must not forget that an international conference is different from a parliament; that independent and sovereign nations are not bound by majorities, and that positive results are obtained by compromising upon desirable but perhaps less advanced projects. The aim of a conference is to lay down a law for all, not for the many, much less for the few; to establish a law which will be international because it accepted and enforced by all nations.

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The work of the conference concerned the modification of existing international law; international differences of opinion and inter

pretation were adjusted; doubt gave place to certainty; and, after much consideration and reflection, principles of international law were fortified, modified in part, or wholly discarded. A complete code was not established - it is doubtful whether custom and usage are ripe for codification but important topics of international law were given the symmetry and precision of a code.

It may be maintained that international law is law in the strict sense of the word, or it may be contended that it lacks an essential element of law, because there is no international sheriff; that it is international morality or ethics; or that finally a law of nations is the occupation of the theorist and the hope of the dreamer. However opinions may differ as to the nature of international law, there can be no doubt of the existence of certain rules and regulations which do by common consent control the conduct of independent nations; nor can there be any reasonable doubt that enlightened people of all countries take a deep and abiding interest in international law, and share the hope of the dreamer, not only that greater precision may be given to its principles, but that the principles themselves may be developed and applied with the certainty and precision of a municipal code.

From the cell of the cloister international law passed into the study of the philosopher, the jurist, and the scholar; from the study it entered the cabinets of Europe, and for two centuries and more a recognized system of international law has determined the foreign relations of nations; from the cabinet to courts of justice, where the rights of nations as well as individuals have been debated and enforced; and finally, from the court-room international law has made its way to the people, who, in last resort, dominate court and cabinet, and enlist in their service scholar as well as priest.

It was a wise remark of Sir James Mackintosh that constitutions are not made: they grow; for history demonstrates that unnatural unions dissolve; that unnatural alliances have little permanency; that constitutions struck off at the heat of a moment in times of excitement disappear with the causes to which they owe their origin. Constitutions are, in a large and broad sense of the word, codifications. They put into written and permanent form the usages and customs

of the past, and they last because the spirit underlying these usages and customs is wrapped up with the existence and destiny of the people. The Constitution of the United States has lasted, because it was based upon the usages and customs of England, as modified by the experience in the colonies, and the Constitution will last as long as it answers the needs of its framers, and no longer. To understand, however, the Constitution, English customs and usages must be studied, and to predict the lines of development we must interpret the language of the Constitution in the light of its origin, as well as in the concrete case under investigation. It is the same with law. Law is not imposed as a system upon the people. Isolated usage develops into habit; the habit becomes crystallized into custom; and to custom there is given, consciously and unconsciously, the force of

law.

The common law of England is not due to the wisdom of any one person or of any one age. It grew to meet a need; it changed with that need, and disappeared when it could no longer subserve a useful purpose. It is a growth, an organism, not a crystallization.

When, however, the process of development did not keep abreast of the age, or when new and unsuspected needs required special treatment, statutes made their appearance to supply the lack or to correct the evil. The statute would be special if a special point were involved. The statute would be general in its terms if the evil to be corrected were general, or the need of the statute was of a general, wide-spread nature. The more rapid the development of the country, the greater and more diversified become the needs of an enterprising and progressive community, and consequently the more frequent would be and must be the resort to statutory enactments, in order to safeguard the rights and interests created as the result of changed conditions. Hence, it follows that a system of law in its early stages springs directly out of the needs of the people. If the needs be simple, the law, of which custom is the very life, is simple. It is said to be unwritten in the sense that no custom is at once the law and the evidence, although in process of time the customs are naturally reduced to writing by people learned in customary law, and it is given precision by decrees of courts of justice. Complex situa

tions give rise to a complex system of law, and the natural development of custom not being sufficient, the legislature steps in by statute to accelerate the development and to give to the system of law the precision, the solidity, and the refinement necessary for a complicated and progressive civilization. In this development, then, we have the local usage, the custom, and the statute.

If we turn from the common law to international law, we find that the course of development of the common law of nations has been singularly like that of the common law of England.

We first have the usages of enlightened nations. These usages spread, gain weight and influence by repeated application. We next find that the usages have taken on the form of custom, and nations. from isolated or frequent usage regard the custom as binding upon them. That which is claimed as a right on the one side becomes a duty on the other, for right and duty are correlative. The demand in itself is a consent to the rule of law. The yielding to the demand is an acknowledgment of the rightfulness of the custom.

We thence have customary rules and regulations binding nations in their mutual intercourse, because the nations, either by enforcing the custom or yielding to the custom sought to be enforced, have given to the custom the weight of law. But just as the common law of England grew slowly, indeed imperceptibly, so have the usages of nations developed slowly and imperceptibly. When nations had little intercourse with one another, the need for a system of law regulating such relations was of little moment. As nations have grown, as they have come into closer contact, as no nation lives and can live in the modern world in a state of isolation, it necessarily follows that the usages and customs of nations must be developed in order adequately to meet changed conditions. The independence of the state is the very postulate of international law; but the solidarity of interest has made itself felt to such a degree that nations have yielded and must in the future yield something of their absolute liberty and independence, just as a citizen yields his absolute freedom for the benefit of society, of which he is a part.

We see, then, from this brief and imperfect sketch of the origin and nature of the common law of one particular jurisdiction, an

analogy between the common law of nations, namely, the usages and customs of many nations. We find, or at least we can assume, that when only one nation existed there could be no international law; two nations existing would have comparatively little intercourse and the rules and regulations governing their intercourse would, therefore, be simple. As the two gave place to the many, and as intercourse became very frequent, the need of a more elaborate code would become evident. Usage and custom would grow to meet the need, and in the course of time, insensibly and imperceptibly, usage and custom would take the dimensions of a code. But while that is entirely true generally, it is true with much greater force in the present and, indeed, in the immediate past; for the discovery of the new world, North and South America, and the contest for the possession of this world; the establishment of colonies with the various colonial systems, and the conflicts of interest that necessarily arose, would require a system of law adequate to settle them; and when nations became more closely connected, more intimately and frequently involved, it followed that the simplicity of the earlier usages and customs would either give place to a more complicated code or would themselves be developed in order to meet the growing needs. Now, how could this be done? In this way. As nations became more closely united or related, previous usage or custom was found to be inadequate; but the spirit pervading the usage or custom was discovered and developed, precisely as the spirit in the common law was developed in order to meet a changed condition of affairs. Just as in appropriate cases the municipal legislature stepped in and corrected an abuse or covered a field by statute, conferences were held between rulers, treaties were negotiated to regulate a specific concrete controversy, and finally congresses, usually not at the beginning but at the end of the controversy, composed of many states, because the interests of many were concerned, were convened in order that that might remain settled in peace which had been established in War. The conference or congress is, it would seem, not far removed from an international legislature, whose acts are submitted ad referendum to the participating nations.

We therefore find that treaties mark the first general step in the